by Jim Jensen

A wastewater discharge permit issued to the proposed Grantsdale subdivision on Skalkaho Road south of Hamilton by the Montana Department of Environmental Quality (DEQ) was issued illegally according to a recent State district court ruling.

Bitterroot River near Lolo. Photo (c) Roger Peterson.

Three citizen groups, MEIC, Bitterrooters for Planning, and the Bitterroot River Protection Association challenged the permit in court because they believed the discharge from the 70-acre, 181-unit subdivision’s septic sewer drain field would degrade the Bitterroot River. According to DEQ’s own fact sheet, this permit would have allowed a discharge containing nitrogen levels 80 times the DEQ target for the Bitterroot River. Also, the developer would have been allowed to discharge sewage into the aquifer and, ultimately, into the already impaired Bitterroot River, at the rate of an estimated 40,000 gallons/day.

In spite of this obvious impact, DEQ failed to perform a non-degradation analysis and failed to analyze the cumulative effects of the discharge on the Bitterroot River. The groups argued that these analyses are required by State law. State district judge Kathy Seeley agreed completely.

In her ruling, which is a powerful rebuke of DEQ’s ground water permitting process, Seeley made a number of strong statements:

“DEQ’s failure to recognize the connection between ground water and surface water in this case is a failure to adequately protect the water quality of the Bitterroot River. This, in turn, violated DEQ’s responsibility to protect the water quality of the state.”

“Substantively, the determination that there need not be full degradation review could have long-term, momentous effects on the quality of the water affected by the activity allowed by the permit.”

“DEQ’s permit process is integral to protection of Montana’s water quality. In this case, its issuance of [the permit] was unlawful and arbitrary and unsupported by law because its conclusions were not supported by the relevant objective and scientific data in the administrative record.”

It is important to put this decision, and the subdivision to which it relates, in a broader context. Allowing lower water quality standards for on-site wastewater disposal systems in rural, high density, subdivisions not on a municipal wastewater system, creates an economic incentive for rural sprawl development. And, of course, taxpayers ultimately bear the cost when water contamination occurs.

Two MEIC Board members played crucial roles in this case. John Rundquist, a professional engineer, presented detailed expert testimony during the public comment period, and Erin Ferris-Olson was co-counsel with Jack Tuholske of Missoula. Many thanks to both of them.